COURT FILE NO.: CR-21-50000137-0000
DATE: 20220624
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL SMITH
P. Zambonini and M. Townsend, for the Crown
D. Derstine and J. Cowley, for Mr. Smith
HEARD: June 20, 2022
REASONS FOR SENTENCE[^1]
SCHRECK J.:
[1] Blain Grindley was a 26-year-old young man who worked for a construction company and was much loved by his parents and his younger brother. On the afternoon of May 1, 2019, for reasons that are unknown and may never be known, someone shot him to death in his home.
[2] Michael Smith and two other individuals were charged with first degree murder in relation to Mr. Grindley’s death.[^2] Following a trial, a jury found Mr. Smith not guilty as charged but guilty of manslaughter. The basis on which the jury found Mr. Smith guilty of manslaughter is unclear as there was more than one route to liability for that offence.
[3] Mr. Smith is now before the court for sentencing. He is 31 years old. He has one son and a large and supportive family. He has a relatively minor criminal record which includes a conviction for assault and several convictions for failing to comply with various court orders.
[4] The following reasons explain the sentence that will be imposed in this case.
I. FACTS
A. The Offence
(i) Evidence at Trial
[5] The evidence heard by the jury is outlined in detail in my ruling on a directed verdict application, reported as R. v. Douse, 2022 ONSC 3228, at paras. 6-37. Briefly, at about 1:00 p.m. on May 1, 2019, a black Honda Accord entered the parking lot of a housing complex on John Garland Boulevard in Toronto. Three men wearing face coverings and gloves exited the car and were seen on security video from various cameras in the area walking directly towards the townhouse where Mr. Grindley lived. The men were off-camera for about 50 seconds, after which they were seen running back the way they came to the Honda Accord. They got into it and it immediately drove away. There was evidence that at least one person remained in the car.
[6] A neighbour heard two gunshots at around the same time as the men had exited the car and saw the three men coming out of the yard behind Mr. Grindley’s house. Paramedics and police arrived soon after and found Mr. Grindley’s body in the house. He had been shot once in the chest and died of his injuries.
[7] A few minutes before the Honda Accord arrived at the housing complex, it had stopped outside a dollar store in a plaza a short distance from the housing complex. A man, who was admitted to be Mr. Smith’s co-accused, Mr. Douse, entered the store and bought gloves and neck gaiters. He got back into the car, which left the plaza heading in the direction of the housing complex.
[8] The police later discovered that the Honda Accord had been rented from a car rental agency by a man who had agreed to rent it in exchange for drugs. At trial, GPS and cell phone evidence was adduced to show the movements of the car and various cell phones, including one said to be used by Mr. Smith.
(ii) Routes of Liability
[9] For reasons explained in the ruling on the directed verdict application referred to earlier, the jury was instructed with respect to several routes of liability for first degree murder, second degree murder and manslaughter. It was open to the jury to convict Mr. Smith of manslaughter as a party pursuant to either s. 21(1)(b) or s. 21(2) of the Criminal Code. Section 21(1)(b) was only available if the jury found that Mr. Smith was one of the three men who exited the car. Section 21(2) was available even if the jury concluded that Mr. Smith remained in the car.
B. Victim Impact Statements
[10] Both of Mr. Grindley’s parents prepared victim impact statements. They both described Mr. Grindley as a quiet but likeable young man who worked hard and loved and was loved by his family. He had a younger brother who looked up to him. The entire family is devastated by his death and his parents have eloquently and poignantly described the extent of that devastation in their victim impact statements. They are heartbroken and have emotional wounds that are unlikely to ever completely heal.
[11] As I indicated during the sentencing hearing, I very much appreciate that Mr. Grindley’s parents chose to tell me about the type of person that he was and to share how this crime has impacted their lives. The following comments are directed to them.
[12] First, obviously no sentence I can impose can undo the devastation caused by the death of Mr. Grindley. While it is sometimes said that the end of a criminal trial can help to bring “closure” to victims, the sad reality is that the pain Mr. Grindley’s parents are feeling comes from the loss of their son, and nothing that happens in a courtroom can change that. Only time can ease that pain. I sincerely hope that it does so for Mr. Grindley’s parents. They did nothing to deserve this, nor did their son.
[13] Second, the sentence I impose in this case is not meant to and does not reflect the value of Mr. Grindley’s life or the extent of his parents’ suffering. Neither of those things can be measured, least of all by the length of a prison sentence.
[14] Third, while the impact a crime has on victims is a very important consideration in sentencing, the law does not permit me to consider a victim’s recommendation as to the appropriate sentence.
C. The Offender
(i) Background and Personal Circumstances
[15] Mr. Smith is 31 years. Although his parents separated when he was very young, both of them were part of his life while he was growing up and he had a good childhood. Mr. Smith has a large extended family, all of whom are very supportive of him and many of whom wrote letters to me expressing their support.
[16] Mr. Smith has an eight-year-old son who is currently living with his maternal grandmother. He is by all accounts a good and caring father and contributes emotionally and financially to the support of the child.
[17] Mr. Smith struggled in school and did not complete high school until very recently, when he did so while in custody awaiting trial. At that time, he achieved very high marks and was described by the volunteer who assisted him through the Amadeusz Education Program as “dedicated, capable and engaged.” He has a significant employment history and has worked in a variety of fields, most recently for a company that manages and provides promotional material for recording artists. This employer is willing to have him return to work once he completes his sentence.
[18] When given an opportunity to address the court at the sentencing hearing, Mr. Smith stated that he was deeply sorry for the part that he played in the commission of this offence and the pain that he caused and that he was very remorseful. I accept this expression of remorse as sincere.
(ii) Criminal Record
[19] Mr. Smith has a criminal record with several convictions between 2011 and 2018. The majority of the entries relate to failures to comply with recognizances or probation orders. The only offences of violence are an assault in 2015, apparently in relation to a domestic partner, for which he received a sentence of one day in addition to 29 days of presentence custody, and a conviction for uttering threats in 2011, for which he received 30 days intermittent. The longest sentence Mr. Smith has ever served was 45 days intermittent in 2011, which was for the threatening conviction as well as convictions for mischief and failing to comply with recognizances.
II. ANALYSIS
A. Findings of Fact
[20] Section 724(2) of the Criminal Code requires me to accept as proven all facts, express or implied, that are essential to the jury’s verdict and also permits me to find other facts disclosed by the evidence. The approach to be taken in applying this section was recently explained in R. v. Aragon, 2022 ONCA 244, at para. 105-107:
To sentence an offender convicted by jury, a sentencing judge must therefore identify the facts that are essential to the jury’s verdict or, in other words, identify “the express and implied factual implications of the jury’s verdict”: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 17, citing R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518, at p. 523. Where “the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury but should come to his or her own independent determination of the relevant facts”: Ferguson, at para. 18.
It follows that there is a two-step process required in settling the factual record of sentencing in a jury trial. First, the sentencing judge must identify any relevant factual determinations the jury has made by examining what facts were essential to the jury’s verdicts, and then apply those facts when sentencing the offender. Second, where it is necessary in order to sentence an offender to determine facts that were not expressed or necessarily implicit in the jury verdict, the sentencing judge is to engage in their own, independent fact-finding exercise.
It is therefore an error for a sentencing judge to rely on facts in sentencing that are not expressed or implicit in the jury’s verdict, but that are based on the sentencing judge’s belief as to what the jury must have decided: R. v. Moreira, 2021 ONCA 507, at paras. 43-57. To rely on aggravating facts that are not necessarily expressed or implicit in the jury verdict, the sentencing judge must come to their own independent determination that those aggravating facts have been proved, beyond a reasonable doubt: Criminal Code, s. 724(3)(e); R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368, at paras. 112-14.
[21] In this case, the jury clearly rejected the Crown theory that the three men went to Mr. Grindley’s home to commit a planned and deliberate murder. Beyond that, the only express or implied finding is that Mr. Grindley died as the result of an unlawful act which Mr. Smith was a party to and in circumstances where the risk of bodily harm that was neither trivial nor transitory was objectively foreseeable: R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 18. To determine any facts beyond that, I must engage in my own independent fact-finding exercise. In doing so, I must not find any facts that are aggravating unless they have been proven beyond a reasonable doubt.
[22] In this case, the Crown submits that the evidence establishes that Mr. Smith was one of the three men who got out of the car, that one of the three men had a firearm and that Mr. Smith was aware of this. Counsel for Mr. Smith submit that these facts have not been established and that the verdict could have been based on a finding that Mr. Smith remained in the car but ought to have foreseen the possibility of bodily harm because one of the three men had a long, stick-like object with him.
[23] Having considered all of the evidence, I make the following factual findings.
- The people in the Honda Accord went to the housing complex with a plan to go to Mr. Grindley’s home and commit an offence there. This is demonstrated by the fact that the three men walked directly towards Mr. Grindley’s home after getting out of the car and did not stop or even slow down until they got there. The fact that they were masked shows that they were intending to commit a crime. On this record, I cannot determine what crime they were planning to commit, nor can I find that Mr. Grindley was an intended target.
- One of the three men was armed with a firearm. The surveillance video makes it clear that the men were in and out of Mr. Grindley’s home in less than a minute. It is implausible that in that brief period, one of the three men either found a firearm or took a firearm from someone else and shot Mr. Grindley with it.
- Mr. Smith was aware of the firearm. This was clearly a carefully planned endeavour. The GPS and cell tower evidence shows that Mr. Smith was in communication with others earlier in the day and used the Honda Accord to pick up one or more of the people who eventually went to the housing complex. He was clearly involved in the planning and I infer from this that he was aware of the details of the plan, including the presence of a firearm.
- Mr. Smith is guilty of manslaughter pursuant to s. 21(2) of the Criminal Code. While I concluded that there was sufficient evidence to warrant dismissing a directed verdict application, there was very little evidence as to what happened in the house and I am not in a position to make any finding that Mr. Smith or anyone else did something to aid the unlawful act that resulted in Mr. Grindley’s death. There is ample evidence to support a finding that Mr. Smith and others formed an intention in common to carry out an unlawful purpose in circumstances where bodily harm was objectively foreseeable.
- I am unable to conclude that Mr. Smith subjectively foresaw the risk that the gun would be used. There is no evidence as to the details of the plan or whether any of the participants had a propensity for violence. As a result, Mr. Smith must be sentenced on the basis that the risk that the gun would be used was objectively but not subjectively foreseeable: R. v. Kwakye, 2015 ONCA 108, at para. 5.
- I make no finding with respect to whether Mr. Smith went into the house or remained in the car. In my view, it does not matter as he is equally culpable either way.
B. General Sentencing Principles
[24] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. As the Ontario Court of Appeal recently observed in R. v. Morris, 2021 ONCA 680, at para. 58:
Those objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.
[25] While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30.
C. The Applicable Range
[26] Manslaughter is an offence that can be committed in a wide variety of ways and, as a result, the sentences that are imposed for the offence vary greatly: R. v. Ali, 2018 ONSC 5536, at para. 31. A number of authorities from the Ontario Court of Appeal and this court suggest that the appropriate range for manslaughter cases with significant aggravating factors such as the use of a firearm is eight to 12 years: R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at paras. 81-83; R. v. Tahir, 2016 ONCA 136, at para. 2; R. v. Atherley, 2009 ONCA 195, at para. 4; R. v. Devaney (2006), 213 C.C.C. (3d) at paras. 33-37; R. v. Cleyndert, 2006 33851 (ON CA), [2006] O.J. No. 4038 (C.A.), at para. 12; R. v. Clarke (2003), 2003 28199 (ON CA), 172 O.A.C. 133, at para. 7; R. v. Lee, 2021 ONSC 6704, at para. 28; R. v. Khan, 2022 ONSC 410, at para. 135; R. v. Hong, 2016 ONSC 2654, at paras. 100-104; Ali, at paras. 37-38.
[27] Counsel for Mr. Smith submit that a lower range of six to eight years is appropriate. However, that position is premised on a finding that Mr. Smith was not aware of the presence of a firearm. I have found that Mr. Smith was aware of the firearm, which is a significant aggravating factor that distinguishes this case from R. v. Turner, 2019 ONSC 5435, on which counsel rely. Other cases counsel rely on such as R. v. Sahal, 2016 ONSC 6864 and Kwakye, involve youthful first offenders, which Mr. Smith is not.
[28] Crown counsel submit that a higher range of 12 to 15 years is appropriate. However, the cases they rely on are also distinguishable in that they contain significant aggravating factors not present in this case. For example, in R. v. Warner, 2019 ONCA 1014, the accused had personally discharged a firearm injuring another person, was subject to a firearms prohibition at the time of the offence, and fled the country afterwards, all of which was found to justify the “very substantial” 15-year sentence imposed by the Court of Appeal in that case.[^3]
[29] In R. v. Thompson, 2008 ONCA 693, the Court upheld a 13-year sentence where the accused was an active participant in a bank robbery where he brandished a handgun to threaten people and continued to do so after a clerk was fatally shot.
[30] In Jones-Solomon, a 13-year sentence was upheld where the accused had been part of a planned home invasion in which beating and severely assaulting the victims was part of the plan. In this case, there is no evidence that violence was part of the plan.
[31] In R. v. Atherley, 2009 ONCA 195 and R. v. Barreira, 2021 ONCA 455, 15-year sentences were upheld in cases where the accused had significant criminal records for offences of violence and had planned violence against the victims.
[32] In my view, this is a case where the eight-to-12-year range applies. I must now determine where within that range this case falls, which will require a consideration of the aggravating and mitigating factors.
D. Aggravating and Mitigating Factors
(i) Aggravating Factors
[33] The most significant aggravating factor in this case is that a firearm was involved, which I have found Mr. Smith knew about. Gun crimes are a scourge in this jurisdiction. The proliferation of illegal handguns, which are manufactured for the sole purpose of killing or seriously injuring people, is a significant threat to the safety of our community. While it would be naïve to think that sentences imposed by the courts will solve the problem, the consistent theme in the sentencing jurisprudence is that significant sentences must be imposed for offences where guns are involved: R. v. Bullock, 2017 ONCA 398, at para. 17; R. v. Doucette, 2015 ONCA 583, 328 C.C.C. (3d) 211, at paras. 59-60; R. v. Danvers (2005), 2005 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77.
[34] Another aggravating factor is that whatever the three men were intending to do in Mr. Grindley’s home, it involved a degree of planning. Mr. Smith and the others drove there, arranged to have someone purchase gloves and face coverings, and went into the house.
[35] While Mr. Smith has a prior criminal record, I do not view this as a significant aggravating factor. There are only two entries on it that can be described as relating to offences of violence, and none of the convictions resulted in significant terms of imprisonment. The record does, however, mean that he is not a first offender.
(ii) Mitigating Factors
(a) Rehabilitative Potential
[36] Mr. Smith has the support of a large and caring family, which bodes well for his rehabilitative prospects. He is by all accounts a responsible parent to his son and it appears from the letters that have been filed that he can be a caring and dependable individual.
[37] It is also mitigating that Mr. Smith has a fairly steady employment history and while in custody has taken steps to finish his high school education.
[38] As noted earlier, I accept Mr. Smith’s expression of remorse at the sentencing hearing as sincere. I am alive to the fact that Mr. Smith did not plead guilty, although I note that he was charged with first degree murder, not the offence he was convicted of. Unlike one of his co-accused, who fled the country, Mr. Smith turned himself in after a warrant was issued for his arrest.
(b) Conditions of Presentence Incarceration
[39] Mr. Smith was arrested on May 20, 2019 and has been in custody since that time, mostly at the Central East Correctional Centre (“CECC”), where he spent 365 days, and the Toronto East Detention Centre (“TEDC”), where he spent 739 days.[^4] Institutional records from those institutions indicate that Mr. Smith was subject to lockdowns on 227 days, virtually all of which were the result of staff shortages. Mr. Smith was “triple-bunked”, that is, required to share a cell designed for two with two other inmates, on 370 days. He was offered access to an outdoor yard less than 30% of the time that he was at the TEDC. Mr. Smith kept his own records for some but not all of the time that he was in custody and believes that the institutional records are inaccurate and that he was locked down more often than the records indicate.
[40] Because of the ongoing pandemic, in-person visits from friends and family were cancelled for large periods of time between March 2020 and December 2021.
[41] It is now well accepted that the existence of unduly harsh conditions in presentence custody is a relevant factor on sentencing. Reducing a sentence on this basis is often referred to as “Duncan” credit after the decision in R. v. Duncan, 2016 ONCA 754. However, in R. v. Marshall, 2021 ONCA 344, at para. 52, the court explained that this is not really a “credit,” but rather a mitigating factor to be considered together with other aggravating and mitigating factors:
The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit [R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575] will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.
Thus, a “Duncan” credit is essentially treated like any other collateral consequence of the commission of the offence. It is relevant to the offender’s personal circumstances and must be taken into account to ensure proportionality, but cannot be used to reduce a sentence to the point that it becomes disproportionate: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at paras. 48, 56.
[42] Prior to Marshall, a “Duncan” credit was usually awarded based on the number of days spent subject to harsh conditions multiplied by what the court considered to be the appropriate ratio. This type of quantification is permissible as long as it does not skew the calculation of the ultimate sentence or lead to an overemphasis of the mitigating effect of the custodial conditions: Marshall, at para. 53.
[43] Subjecting inmates to lockdowns because of staff shortages, overcrowded cells, and insufficient access to fresh air violate the United Nations Standard Minimum Rules For the Treatment of Prisoners (“the Mandela Rules”).[^5] As was noted in Brazeau v. Canada (Attorney General), 2020 ONCA 184, 149 O.R. (3d) 705, at paras. 82, 89, Canada played a role in developing the Mandela Rules, and the Ontario Government’s systemic failure to abide by them is an embarrassment to the administration of justice.
[44] While I do not intend to quantify its effect, in my view, the disgraceful treatment of Mr. Smith at a time when he was presumed innocent of any charges is a significant mitigating factor. That said, I recognize that the ultimate sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
E. Determining the Appropriate Sentence
[45] Balancing the various aggravating and mitigating factors to determine where within the appropriate range a sentence falls is not a mathematical exercise. Having performed that balancing in this case, I have determined that the appropriate sentence is nine and a half years, which for reasons that will become apparent I will round down to 113.5 months. As noted earlier, this number reflects the mitigating effect of the conditions Mr. Smith was subjected to while in presentence custody. While this factor does not take the sentence outside the appropriate range, it places it near the middle instead of at the higher end.
F. Credit for Presentence Custody
[46] Pursuant to s. 718(3.1) of the Criminal Code, Mr. Smith is entitled to a credit of one and one-half day for each day spent in presentence custody: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. He has been in custody since May 25, 2019, which is approximately 37 months. He is therefore entitled to a credit of 55.5 months. This means that he has 58 months, or four years and 10 months, left to serve.
III. DISPOSITION
[47] For the foregoing reasons, Mr. Smith is sentenced to a term of imprisonment of 58 months after being given a credit of 55.5 months for 37 months spent in presentence custody. The sentence that would have been imposed without the credit is 113.5 months.
[48] Pursuant to s. 109(2) of the Criminal Code, Mr. Smith is prohibited from possessing the items described in s. 109(2)(a) for a period of 10 years after his release from imprisonment and is prohibited from possessing the items described in s. 109(2)(b), including any prohibited or restricted firearms, for life.
[49] Pursuant to s. 487.051(2) of the Criminal Code, Mr. Smith is ordered to provide a sample of his DNA for inclusion in the national databank.
Justice P.A. Schreck
Released: June 24, 2022
COURT FILE NO.: CR-21-50000137-0000
DATE: 20220624
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MICHAEL SMITH
REASONS FOR SENTENCE
P.A. Schreck J.
Released: June 24, 2022
[^1]: An abbreviated version of these reasons was delivered orally in court. In the event of any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct.
[^2]: One of those individuals has been severed and is yet to be tried. The other, Andrae Douse, was acquitted by the jury.
[^3]: The Court of Appeal reduced an 18-year sentence imposed at trial (R. v. Warner, 2018 ONSC 1799).
[^4]: The CECC records, dated May 26, 2022, and the TEDC records, dated June 3, 2022, were referred to in an affidavit sworn by Mr. Smith on June 8, 2022.
[^5]: https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf (UNGAOR, 70th Sess., UN Doc. A/Res/70/175 (2015))